STATE OF GUJARAT Vs. MANOJ KHIMJI OSHAVLAL

JUDGEMENT

(1.) BOTH these appeals are filed by the State challenging the judgment dated 06.01.1997 passed by the learned Sessions Judge, KutchBhuj in Sessions Case No.69 of 1994. The respondent accused was charged with offence punishable under Section 302 of IPC. By the impugned judgment, the learned Sessions Judge convicted him for offence u/s. 304 Part II and sentenced him to Rigorous Imprisonment of six years and find of Rs.500/ was also imposed. To challenge the acquittal of the accused for offence under Section 302, State has preferred Criminal Appeal No.305 of 1997 and for enhancement of sentence under Section 304 Part II awarded by the Sessions Court, the State has preferred Criminal Appeal No.288 of 1997. The accused has not preferred any appeal and would have presumably served out the sentence.

(2.) BRIEFLY stated, the prosecution version was that on the date of the incident i.e. 14.05.1994, when Pethabhai Ambabhai was sleeping in the veranda of his house, at about 2:00 O'clock, the accused came to his house with an axe and gave one axe blow on his forehead and another axe blow on his wrist. His wife Santokben came screaming, upon which the accused left the axe there and ran away. The injured was first taken to the hospital at Bhachau, where after preliminary treatment, he was sent to Bhuj. Operations were performed for his head injury. However, on 6th January 1994 while still under treatment he died.

(3.) INSOFAR as the involvement of respondent accused in causing death of the deceased is concerned, there is little doubt in our minds. The prosecution had relied heavily on the eyewitness account of Santokben, wife of the deceased, P.W.2, Exh.13. She had witnessed the incident and seen the accused giving two blows. She was herself sitting nearby when her husband was sleeping and was attacked. The Executive Magistrate had also recorded the dying declaration on 14.05.1994 after the doctor at General Hospital, Bhuj, certified that he was able to give his statement. In such statement, he had disclosed that because of family reasons nearly 25 years back, the agriculture land was partitioned. He did not have relations with his brother's son who was also residing nearby since then. Since 10 years even they did not have talking terms. The accused is his nephew who was otherwise working at Mumbai and had come to the village since couple of months. Keeping the grudge for the past disputes in the family, he came in the afternoon with an axe and gave blows on the head and on the hand. In this declaration, the deceased referred to two blows on the head and two on the hand. The evidence, however, suggests that there was one blow each.